“But I’m Planning To Make Less Later!”

I can’t tell you Dad wasn’t sincere. I can’t even tell you that he wasn’t guessing the future accurately. What I can tell you is that he’s in extremely good company.

The case is Abril v. Mobley, Case No. 2130529 (Ala. Civ. App. October 24, 2014). Dad was a licensed aircraft mechanic employed in Afghanistan and making about $20,000 per month. Yeah, you read that right. Stateside, he would be able to earn between $30,000 and $50,000 per year. This isn’t a commentary about the insanely high cost of maintaining an empire in nations that don’t really want us there, so I’ll stop there about that. Dad said he planned to return to the states to care for his ailing mother, so that his income would drop to that much lower figure. Said he’d already tendered his resignation. “So naturally, judge, you can’t expect me to pay child support based on what I make now. You need to base it on what I tell you I’ll be able to earn later on.”

Do you buy that? The trial court did. Said it would be “manifestly unjust” to base Dad’s child support on the income Dad was currently earning. The trial court instead based child support on the high end of Dad’s estimated future income range and assumed he would be working a 40 hour week. The trial court noted that Dad’s child-support obligation could be recalculated “should the husband return to work as a contract worker overseas.” When Mom’s Rule 59 motion to alter, amend, or vacate was denied by the court’s failure to rule on it, she appealed.

My experience is that nearly every high-paid person going through a divorce has a plausible argument in the midst of the divorce about how his or her income is about to fall significantly. Most trial courts don’t pay much attention to this, and I’m frankly surprised that this trial court took Dad seriously. Child support is designed to be dynamic, to go up and down in response to the parties’ incomes as they change from time to time, so there’s simply no justification for making any guesses about future changes in either party’s income.

The Appeals Court reversed on this issue. Acknowledging that child support rests within the trial court’s discretion, the Appeals Court said the trial court’s judgment “was premised ‘on a mere supposition that the father’s income ‘may’ be decreased at a future date.’ Simmons v. Simmons, 600 So.2d 305, 306 (Ala. Civ. App. 1992).” The Appeals Court said “if the husband does in fact return from Afghanistan and finds employment in the United States, he may then petition the court for a modification of his child support obligation to more accurately reflect his actual level of income.”

Mom also argued that the trial court had erred in its judgment on property division. The Appeals Court reversed on this issue, too, because the trial court had simply failed to make an award of marital property other than giving each party the car he or she was driving, ignoring significant financial assets in the form of bank accounts, stocks and bonds, retirement accounts, the house Dad owned in Colombia, and the office building Mom owned there.

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